Pendakwa Raya v Akmal Hakim Bin Hadi Munir (JA-42JSKLB(A)-2-11/2024)

Before the court is an appeal by the Public Prosecutor against the decision of the learned Sessions Court Judge who acquitted and discharged the Respondent, Akmal Hakim bin Hadi Munir, at the close of the defence case of a charge under Section 14(a) of the Sexual Offences Against Children Act 2017 (Act 792) read together with Section 16(1) of the same Act.

The charge against the Respondent read as follows: “Bahawa kamu pada 09/12/2021, jam lebih kurang 11.20 pagi, bertempat di kelas 4 UM, Sekolah S/N lhU5JOj4N06YVxv4sogq8g **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 Kebangsaan Pasir Putih, Jalan Muafakat, Kampung Pasir Putih, 81700, Pasir Gudang, Johor, di dalam daerah Johor Bahru, di dalam Negeri Johor Darul Takzim, telah melakukan amang seksual fizikal iaitu dengan cara menyentuh menggunakan tangan kamu kemaluan satu kanak-kanak lelaki iaitu anak murid kamu penama XXX, No. KPT: XXX berumur 10 tahun 10 bulan. Oleh yang demikian, kamu telah melakukan suatu kesalahan di bawah seksyen 14(a) Akta Kesalahan-kesalahan Seksual terhadap kanak-kanak 2017 dan dibaca bersama seksyen 16(1) akta yang sama.” (Note: In accordance with established judicial practice and the principles of protecting child victims in sexual offence cases, the name of the alleged victim in this case has been replaced with “XXX” throughout this judgment.)

Having carefully considered all the evidence adduced, the written submissions of learned counsel for both parties, and the relevant legal principles, this court finds that the learned Sessions Court Judge applied the correct legal principles and properly evaluated the evidence before her when she acquitted and discharged the Respondent. This appeal is therefore dismissed. These are my grounds.

The Respondent was a teacher at Sekolah Kebangsaan Pasir Putih, where XXX (SP2) was a student. SP2 was born on 9.2.2011 and was 10 years and 10 months old at the time of the alleged incident. At the time he testified in court, SP2 was 12 years and 2 months old. S/N lhU5JOj4N06YVxv4sogq8g **Note : Serial number will be used to verify the originality of this document via eFILING portal 3

On 9.12.2021, between approximately 11.30 a.m. and 12.30 p.m., an art examination was conducted at the school in classroom 4 UM. The Respondent was assigned to supervise this examination. SP2 was among the students taking the examination. The examination lasted for one hour.

According to the prosecution’s case, during this examination period, the Respondent allegedly touched SP2’s private parts on four occasions. SP2 testified that the Respondent first came to check his nametag, held the nametag, and directed it towards SP2’s private parts while asking whether SP2 had been circumcised. SP2 answered that he had not. The Respondent then allegedly conducted a patrol of the classroom, returning approximately one minute later to look at the nametag again and rub SP2’s private parts for the second time. SP2 further testified that the Respondent repeated this conduct one more time. The final incident occurred when students were about to leave the classroom, where the Respondent allegedly pretended to stretch and touched SP2’s private parts while standing beside him.

After the examination ended at approximately 12.30 p.m., SP2 was picked up from school by his mother, Nazneem Furzan Ain binti Roslan (SP1). SP2 informed SP1 of the incident while they were in the car. SP1 subsequently contacted the school. 8. A police report was lodged on 9.12.2021 at 3.03 p.m. at Balai Polis Pasir Putih (marked as S/N lhU5JOj4N06YVxv4sogq8g **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 Exhibit P1). However, on the same day, 9.12.2021, at 6.08 p.m., SP1 lodged another police report at Balai Polis Seri Alam (marked as Exhibit D3) expressing her wish to withdraw from the criminal proceedings, stating that she did not wish to proceed with the case in the Criminal Court.

The investigating officer was Inspector Julie Najwa binti Hassan (SP4). SP4 recorded statements from SP1 and SP2 but did not record statements from any of the approximately 20 other students who were present in classroom 4 UM during the examination.

At trial, the prosecution called four witnesses: SP1 (the mother), SP2 (the victim), SP3 (Inspector Zainuddin bin Mat Duwi, the arresting officer), and SP4 (the investigating officer).

At the close of the prosecution’s case, the learned Sessions Court Judge found that a prima facie case had been established and called upon the Respondent to enter his defence.

The Respondent elected to give evidence on oath. He denied the allegations entirely. The Respondent testified that on the day in question, he was assigned to supervise the art examination in classroom 4 UM. He stated that he distributed the examination papers to the students, supervised the class throughout the examination, and collected the answer sheets. He testified that he did not S/N lhU5JOj4N06YVxv4sogq8g **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 stop at any student’s desk during the examination. The Respondent explained that at that time, Johor was still facing the COVID-19 pandemic, and he followed instructions to maintain physical distancing by not stopping at any student’s desk and not making physical contact with any student. He stated that he did not converse with any student during the examination except at the beginning when he asked whether the students understood the questions. The Respondent testified that he could monitor the students from the front of the classroom at the teacher’s desk.

At the close of the defence case, after considering all the evidence and the submissions of both parties, the learned Sessions Court Judge found that the defence had successfully raised a reasonable doubt regarding the prosecution’s case. She therefore acquitted and discharged the Respondent on 7.11.2024.

The Appellant contends that the learned Sessions Court Judge erred in finding that the prosecution failed to prove its case beyond reasonable doubt. The Appellant’s primary arguments are as follows:

Firstly, the Appellant argues that SP2’s evidence was credible and “unusually convincing.” SP2 was able to describe the incidents in detail, including the position of his S/N lhU5JOj4N06YVxv4sogq8g **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 nametag and the manner in which the Respondent touched him. SP2’s testimony remained consistent despite rigorous cross-examination. The Appellant submits that SP2 demonstrated the manner of touching during his testimony and explained specific details that could only be known if the incident truly occurred.

Secondly, the Appellant submits that SP2’s evidence was corroborated by SP1’s testimony that SP2 immediately complained to her about the incident after she picked him up from school. The Appellant argues that this complaint made at the first opportunity constitutes corroboration of SP2’s evidence.

Thirdly, the Appellant contends that the failure to record statements from the other 20 students in the classroom does not create a reasonable doubt. The Appellant argues that SP2 testified the incident occurred when he was in a leaning position, and the position of the desks was such that other students would not have been able to see what transpired. SP4’s investigation revealed that no other student witnessed the incident, and therefore their evidence would not have been material.

Fourthly, the Appellant submits that the Respondent’s defence was inconsistent and constituted an afterthought. The Respondent’s defence regarding maintaining physical distancing due to COVID-19 protocols was never put to the prosecution witnesses during cross-examination. The S/N lhU5JOj4N06YVxv4sogq8g **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 Appellant argues this defence should be rejected as a bare denial incapable of raising reasonable doubt.

Fifthly, the Appellant contends that the learned Sessions Court Judge erred by making speculative findings regarding the unlikelihood of the Respondent committing such an act in a public classroom setting.

The Respondent submits that the learned Sessions Court Judge was correct in finding that the prosecution failed to establish its case beyond reasonable doubt and that the defence successfully raised reasonable doubt. The Respondent’s primary arguments are as follows:

Firstly, the Respondent argues that SP2’s testimony contained material contradictions that undermined his credibility. SP2 gave two different versions of how the touching occurred. In the police report (P1), SP2 stated that the Respondent touched his private parts using the nametag. However, in his examination-in-chief, SP2 testified that the Respondent used his left hand. During cross-examination, the Respondent submits that SP2 gave inconsistent answers and appeared uncertain. The Respondent submits that these inconsistencies render SP2’s evidence unreliable. S/N lhU5JOj4N06YVxv4sogq8g **Note : Serial number will be used to verify the originality of this document via eFILING portal 8

Secondly, the Respondent contends that SP2’s testimony regarding the sequence of events was inconsistent. SP2 stated in the police report that the touching occurred continuously, but in his testimony, he mentioned that the Respondent left to patrol the classroom before returning to touch him again. When questioned about this discrepancy, SP2 initially appeared uncertain but ultimately maintained the version given in court.

Thirdly, the Respondent argues that SP2 was uncertain about the position of his nametag during the incident. When questioned whether the nametag was at his stomach or at his private parts, SP2 appeared confused and gave contradictory answers.

Fourthly, the Respondent submits that SP1’s evidence cannot serve as reliable corroboration because SP1 was not an eyewitness. More significantly, SP1 subsequently lodged a police report (D3) expressing her desire to withdraw from the criminal proceedings and not proceed with the case. The Respondent argues that SP1’s testimony revealed she did not remember all details of the incident, which occurred in December 2021, and she gave evidence in April 2023, more than 15 months later.

Fifthly, the Respondent contends that the failure to record statements from the approximately 20 other students present in the classroom creates a significant gap in the prosecution’s case. The Respondent submits that it is S/N lhU5JOj4N06YVxv4sogq8g **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 unreasonable to believe that not a single student among 20 others would have witnessed anything during an examination lasting one hour. The prosecution failed to call any supporting witnesses to corroborate SP2’s allegations.

Sixthly, the Respondent argues that SP4’s investigation was incomplete. SP4 admitted to not recording statements from the 20 students present in the classroom and was also uncertain about the Respondent’s patrol of the classroom.

Seventhly, the Respondent submits that the context of the COVID-19 pandemic and physical distancing protocols must be considered. The Respondent testified that he maintained physical distancing as per government directives and did not stop at any student’s desk. This evidence is corroborated by SP2’s own testimony that students attended school in shifts due to COVID-19 protocols.

The Respondent contends that when all these factors are considered cumulatively, the combination of material contradictions in SP2’s evidence, the absence of supporting testimony from other students, SP1’s subsequent withdrawal of the complaint, and the incomplete investigation created sufficient reasonable doubt warranting the Respondent’s acquittal. ANALYSIS AND FINDINGS The Standard of Proof at the Close of the Defence Case S/N lhU5JOj4N06YVxv4sogq8g **Note : Serial number will be used to verify the originality of this document via eFILING portal 10

At the outset, it is necessary to address the applicable standard of proof in this case. At the close of the defence case, the court must determine whether the prosecution has proved its case beyond reasonable doubt, taking into account the defence evidence adduced.

The Respondent submits that once a prima facie case has been established and the defence is called, the duty of the accused is only to cast a reasonable doubt on the prosecution’s case. The Appellant does not dispute this principle but submits that the defence failed to raise such reasonable doubt.

The legal position is well-established. In Ali Tan bin Abdullah v Public Prosecutor [2013] 2 MLJ 676, the Court of Appeal, per Azahar Mohamed JCA (as he then was), comprehensively explained the standard of proof beyond reasonable doubt: “The cardinal principle in our administration of criminal justice system is that the prosecution must prove the guilt of the accused beyond reasonable doubt. This refers to the standard of proof which must be satisfied by the prosecution before a court finds the accused guilty. Proof beyond a reasonable doubt is proof that leaves the court firmly convinced of the accused’s guilt. However, it is not proof with absolute certainty (see Pang Chee Meng v Public Prosecutor [1992] 1 MLJ 137). Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt (see Miller v Minister of Pensions [1947] 2 All ER 372). Even though the benefit of every reasonable doubt must be given to the accused and cannot be withheld from him, court must not, on the other hand, entertain it on grounds which are fanciful or in the nature of speculation (see Public Prosecutor v Saimin & Ors [1971] 2 MLJ 16 and S/N lhU5JOj4N06YVxv4sogq8g **Note : Serial number will be used to verify the originality of this document via eFILING portal 11

His Lordship further stated: “It is not necessary for the defence to prove anything and all that is necessary for the accused to do is to give an explanation that is reasonable and throws a reasonable doubt on the case made out for the prosecution. It cannot be a fanciful or whimsical or imaginary doubt, and in considering the question as to whether a reasonable doubt has been raised, the evidence adduced by and the case for the defence must be viewed in at least some amount of light, not necessarily bright sunlight, but certainly not against the dark shadows of the night.”

The question before this court is whether the learned Sessions Court Judge erred in finding that the defence had successfully raised a reasonable doubt. For the reasons that follow, I find that she did not.

The Appellant submits that SP2 was a credible witness whose evidence was “unusually convincing.” The Appellant argues that SP2 provided detailed testimony about the manner of touching, the position of the nametag, and the sequence of events. Despite rigorous cross-examination, SP2 maintained his version of events. The Appellant contends that SP2’s ability to demonstrate the manner of touching and explain specific details proves the veracity of his testimony. S/N lhU5JOj4N06YVxv4sogq8g **Note : Serial number will be used to verify the originality of this document via eFILING portal 12

The Respondent argues that SP2’s testimony contained material contradictions that fatally undermined his credibility. Specifically, the Respondent points to three areas of inconsistency: (1) the manner of touching (nametag versus hand), (2) the sequence of events (continuous touching versus touching interrupted by patrols), and (3) the position of the nametag (at the stomach versus at the private parts).

I have carefully examined the evidence of SP2 in its entirety. It is true that there are some differences between SP2’s police report and his oral testimony. However, the significance of these differences must be properly evaluated.

Regarding the first alleged inconsistency concerning the manner of touching, the evidence shows that SP2 stated in the police report (P1): “Ustaz telah memegang nametag yang dipakai oleh saya lalu menggosok tangannya pada kemaluan saya sebanyak 2 kali menggunakan nametag.” In his examination-in-chief, SP2 testified that the Respondent used his left hand to touch his private parts. During cross-examination, SP2 clarified that the Respondent held the nametag, which was behind the nametag, meaning the hand was at the back of the nametag. SP2 also stated in P1 that the Respondent “menggosok tangannya” on his private parts. S/N lhU5JOj4N06YVxv4sogq8g **Note : Serial number will be used to verify the originality of this document via eFILING portal 13

In Pathmanabhan a/l Nalliannen v Public Prosecutor [2017] MLJU 257, the Federal Court held that a police report is usually much shorter than evidence in court, omitting details of events. Minor differences in matters of detail are bound to appear between a concise police report and elaborate evidence in court. Such minor differences cannot be elevated to the rank of major discrepancies. The Federal Court stated: “A point to be borne in mind is that a police report is usually much shorter (omitting the details of the events which had occurred) than evidence in court. Minor differences in matters of detail are bound to appear between the concise SP32’s police report and his elaborate evidence in court. Such minor differences cannot be elevated to the rank of major discrepancies.”

When SP2’s evidence is read as a whole, it is clear that he was describing the same act, which was the Respondent holding the nametag and touching SP2’s private parts in the process. The fact that SP2 provided more detail in court than in the brief police report does not constitute a material contradiction. Indeed, one would expect a 10-year-old child to provide more complete details when questioned in court than when making a police report shortly after a traumatic incident.

Regarding the second alleged inconsistency about the sequence of events, the evidence shows that SP2 testified to the Respondent touching him, then leaving to patrol the classroom, and returning to touch him again. When counsel suggested that SP2 was uncertain about how the incident S/N lhU5JOj4N06YVxv4sogq8g **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 occurred, the learned Sessions Court Judge herself intervened to clarify the issue. After the clarification, SP2 affirmed: “Pasti” (certain). This exchange demonstrates that SP2, after proper clarification, was certain about what had occurred.

Young child witnesses may require assistance to understand questions, particularly when faced with aggressive cross-examination. The learned trial judge properly assisted SP2 in understanding the question, and SP2 then clearly and unequivocally affirmed the certainty of his testimony. This cannot be characterised as a material inconsistency.

Regarding the third alleged inconsistency about the position of the nametag, the evidence must be examined in context. SP2 testified that when standing, his nametag was at his waist, but when leaning back, the position changed. When SP2 was questioned about whether the nametag was at his stomach or at his private parts, his response “Tak pasti. Tangan ustaz berada di kemaluan saya” must be understood properly. SP2 was explaining that what was certain was that the Respondent’s hand was at his private parts, regardless of the precise position of the nametag. This is entirely logical and consistent with a child witness focusing on the material fact, namely the touching itself, rather than ancillary details. S/N lhU5JOj4N06YVxv4sogq8g **Note : Serial number will be used to verify the originality of this document via eFILING portal 15

The Respondent’s submission that SP2 gave “three versions” of the incident overstates the significance of the differences. When the evidence is examined holistically and contextually, SP2’s core testimony remained consistent: the Respondent touched his private parts on four occasions during the examination on 9.12.2021.

However, while I find that the alleged inconsistencies have been overstated by the Respondent, this does not end the inquiry. The question is whether, viewing the totality of the evidence, including these inconsistencies, the Sessions Court was entitled to find that reasonable doubt had been raised.

The Appellant submits that under Section 18 of the Sexual Offences Against Children Act 2017, a conviction may be based on the uncorroborated evidence of a child witness. The Appellant further argues that in any event, SP2’s evidence was corroborated by SP1’s testimony that SP2 complained to her immediately after the incident.

The Respondent does not dispute that Section 18 permits conviction without corroboration. However, the Respondent argues that the prudence rule still applies, and that it is unsafe to convict on uncorroborated child testimony unless that testimony is “unusually convincing.” The Respondent S/N lhU5JOj4N06YVxv4sogq8g **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 submits that SP2’s evidence falls short of this standard and that SP1’s evidence cannot constitute reliable corroboration given her subsequent withdrawal of the complaint.

At the material time of the trial and when the learned Sessions Court Judge delivered her decision, the applicable provision governing the admissibility of uncorroborated child evidence was Section 18 of the Sexual Offences Against Children Act 2017. Although this section has since been deleted, at the relevant time it provided: “Notwithstanding section 133A of the Evidence Act 1950, where in any proceedings against any person for an offence under this Act, the evidence of a child is admitted, such evidence may be received though not corroborated, and if received, the accused may be convicted on such evidence.”

Although Section 18 permits conviction without corroboration, the applicable rule of prudence was comprehensively explained by Spenser-Wilkinson J in Public Prosecutor v Mardai [1949] 1 LNS 65. In that case, His Lordship stated: “Whilst there is no rule of law in this country that in sexual offences the evidence of the complainant must be corroborated, nevertheless it appears to me, as a matter of common sense, to be unsafe to convict in cases of this kind unless either the evidence of the complainant is unusually convincing or there is some corroboration of the complainant’s story.”

This principle was applied in Mohd Khairul Azlan Mohd Napi lwn Pendakwa Raya [2021] MLRHU 1585 by the High Court (Temerloh), per Roslan Mat Nor JC (as he then was). The S/N lhU5JOj4N06YVxv4sogq8g **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 court held that while Section 18 removes the strict legal requirement for corroboration, it does not eliminate the need for credibility. The court stated: “Secara perbandingannya s. 18 ini sebenarnya meletakkan kedudukan saksi yang mana dikehendaki untuk disokong oleh saksi keterangan boleh diterima keterangannya untuk tujuan sabitan tanpa keterangan sokongan. Dalam konteks ini saksi yang tersebut adalah kanak-kanak. Jika perbicaraan melibatkan di bawah akta ini maka keterangan kanak-kanak tersebut boleh dijadikan sandaran untuk sabitan bagi pertuduhan di bawah akta ini. Namun mahkamah perlu berpuas hati bahawa keterangan saksi kanak-kanak tersebut adalah kredibel. Ini bermakna s. 18 itu tidak melonggarkan syarat untuk saksi kanak-kanak tersebut seorang yang kredibel. Sebaliknya s. 18 itu hanya melonggarkan keperluan untuk keterangan sokongan seperti yang diperlukan sebelum ini di bawah s. 133A Akta Keterangan 1950.”

In PP v Mohamad Malek Ridhzuan Che Hassan [2013] 8 CLJ 359, the Court of Appeal, per Mohd Zawawi Salleh JCA (as he then was), held: “Walau apa pun jua, pada pandangan kami, sekiranya keterangan pengadu adalah ‘unusually convincing’, sabitan dalam kes-kes seksual boleh dibuat tanpa keterangan sokongan.”

The test, therefore, is whether SP2’s evidence can be characterised as “unusually convincing.” While I accept that SP2’s core testimony was generally consistent and that he testified to specific details, the question is whether this evidence, standing alone and in the context of all the circumstances of this case, meets the threshold of being “unusually convincing” such that it would be safe to base a conviction upon it without corroboration. S/N lhU5JOj4N06YVxv4sogq8g **Note : Serial number will be used to verify the originality of this document via eFILING portal 18

Regarding the question of corroboration from SP1, the law recognises that a complaint made soon after the occurrence of an alleged offence can serve to corroborate the complainant’s testimony under Section 157 of the Evidence Act 1950 and Section 8 of the Evidence Act 1950.

In Mohd Ikhsan bin Ramli lwn Pendakwa Raya [2018] CLJU 1822, the High Court held: “This Court is of the opinion that the police report (P7) lodged by SP5 was a formal complaint because she wanted the authorities to act on it. If there was no truth in the incident, she would risk breaching the law herself. Therefore, this Court holds that her action in lodging the police report immediately after she fled the kontena was a relevant fact which falls under section 8 of the Evidence Act 1950. The complaint (in the form of the report) is a substantial piece of evidence. It can corroborate the complainant.”

However, the corroborative value of SP1’s evidence in this case is significantly diminished by her subsequent conduct. On 9.12.2021, merely 3 hours after the original police report, SP1 lodged another police report (D3) at Balai Polis Seri Alam stating that she did not wish to proceed with the case in the Criminal Court. During cross-examination, SP1 testified that she discussed the matter with SP4 (the investigating officer) for about an hour, during which SP4 suggested that she withdraw and that the matter be handled between her and the school only. SP1 agreed to withdraw the complaint after SP4 assured her that the Respondent would have a disciplinary record. S/N lhU5JOj4N06YVxv4sogq8g **Note : Serial number will be used to verify the originality of this document via eFILING portal 19

SP1’s testimony also revealed uncertainty about various details. When asked whether she remembered everything given that the incident occurred in December 2021 and she was testifying in April 2023 (more than 15 months later), SP1 agreed: “Tidak semua perkara Puan akan ingat? Setuju.”

More significantly, there is a discrepancy between SP1’s testimony and SP4’s testimony regarding the withdrawal of the complaint. SP1 testified that SP4 suggested she withdraw the complaint. However, SP4 did not confirm this version in her testimony. This discrepancy raises questions about the reliability of SP1’s evidence.

In light of SP1’s subsequent withdrawal of the complaint and the uncertainties in her evidence, I find that her testimony provides limited corroborative value. This court must approach SP1’s evidence with appropriate caution, given her ambivalence about pursuing the complaint.

The Appellant argues that the absence of statements from the other 20 students in the classroom does not create a reasonable doubt. The Appellant submits that SP2 testified the incident occurred when he was in a leaning position, making it difficult for other students to see. Furthermore, SP4’s investigation revealed that no other student witnessed the incident, rendering their evidence immaterial. S/N lhU5JOj4N06YVxv4sogq8g **Note : Serial number will be used to verify the originality of this document via eFILING portal 20

The Appellant relies on Konradt Prosch v Public Prosecutor [2021] 2 MLJ 451 for the proposition that failure to call certain witnesses does not automatically create reasonable doubt where the elements of the offence have been proved.

The Respondent contends that the failure to record statements from approximately 20 students who were present during a one-hour examination creates a significant gap in the prosecution’s case. The Respondent argues that it is unreasonable to believe that not a single student would have witnessed anything during such a lengthy period. The Respondent submits that the prosecution’s failure to call any supporting witnesses undermines the credibility of the allegation.

The law on adverse inference under Section 114(g) of the Evidence Act 1950 is clear. An adverse inference may only be drawn when evidence is withheld or suppressed, not merely when it is not obtained. The inference applies to the non-production of material witnesses or documents essential to unfolding the narrative.

In Munusamy v Public Prosecutor 1 MLJ 492, the Supreme Court held that adverse inference cannot be drawn merely because the prosecution did not call every potential witness. The witness must be material and essential to the prosecution’s case. S/N lhU5JOj4N06YVxv4sogq8g **Note : Serial number will be used to verify the originality of this document via eFILING portal 21

However, this case presents a different consideration. The issue is not whether an adverse inference should be drawn against the prosecution, but whether the absence of any evidence from the other students present creates reasonable doubt about what transpired.

The evidence shows that approximately 20 students were present in classroom 4 UM during the examination. The examination lasted for one hour. SP2 testified that the touching occurred on four separate occasions during this period. According to SP2, the Respondent came to his desk, left to patrol, and returned multiple times.

SP4, the investigating officer, admitted that she did not record statements from any of the other 20 students in the classroom. SP4 testified that she only asked the headmaster whether any students had witnessed the incident, and the headmaster informed her that no student had seen anything. However, SP4 did not independently verify this by interviewing the students herself.

The Respondent’s evidence was that students were sitting close to each other with limited space between desks. SP2 himself confirmed during cross-examination that due to the proximity of desks, he could see what the person in front of him was doing. This raises the question: if SP2 could observe others, why could no other student observe what was allegedly happening to SP2 on four separate occasions? S/N lhU5JOj4N06YVxv4sogq8g **Note : Serial number will be used to verify the originality of this document via eFILING portal 22

The learned Sessions Court Judge found this aspect of the case troubling. She stated at paragraph [75] of her grounds of judgment: “Mahkamah bersetuju dengan hujahan peguambela tertuduh bahawa pihak pendakwaan telah gagal untuk membuktikan tertuduh pada tarikh, tempat dan masa telah membuat sentuhan terhadap mangsa. Tiada sebarang keterangan sokongan daripada 20 orang murid-murid yang lain, melihat kejadian tersebut bagi membuktikan tertuduh telah melakukan sentuhan tersebut.”

At paragraph [76], she further stated: “Mahkamah bersetuju dengan hujahan peguambela tertuduh bahawa timbulnya persoalan adakah benar tiada sesiapa di kalangan 20 orang pelajar di dalam kelas 4 UM melihat apa yang berlaku sebagaimana yang dinyatakan oleh mangsa. Ini kerana dalam tempoh peperiksaan selama 1 jam daripada jam 11.30 pagi ke 12.30 tengahari adalah tempoh masa yang lama di mana adalah sesuatu yang tidak munasabah untuk seseorang menundukkan kepala dan tidak melihat keadaan sekeliling.”

I find that the learned Sessions Court Judge was entitled to make this finding. While the absence of supporting evidence from other students does not automatically create reasonable doubt, when considered together with the other factors in this case, including the inconsistencies in SP2’s evidence, the uncertain corroboration from SP1, and the context of the allegation, it contributes to the overall assessment of whether the prosecution has proved its case beyond reasonable doubt. S/N lhU5JOj4N06YVxv4sogq8g **Note : Serial number will be used to verify the originality of this document via eFILING portal 23

The Appellant’s reliance on Konradt Prosch v Public Prosecutor is misplaced in this context. In that case, the court was addressing whether adverse inference should be drawn. Here, the issue is different: it is whether the absence of any supporting evidence from readily available witnesses, in circumstances where such evidence might reasonably have been expected, contributes to reasonable doubt.

I am mindful that in cases of sexual offences, there is rarely a third party as witness. However, this case is distinguishable from typical sexual offence cases. The alleged touching occurred in a classroom with approximately 20 other students present during a one-hour examination. The allegation is that the touching occurred on four separate occasions, with the Respondent leaving and returning to SP2’s desk multiple times. In such circumstances, the complete absence of any corroborating evidence from other students present is a factor that legitimately bears on the overall assessment of the prosecution’s case.

The Appellant submits that the Respondent’s defence was inconsistent and constituted an afterthought. The defence regarding COVID-19 protocols and physical distancing was never put to the prosecution witnesses during cross-examination. The Appellant argues that this defence should be rejected as lacking credibility. S/N lhU5JOj4N06YVxv4sogq8g **Note : Serial number will be used to verify the originality of this document via eFILING portal 24

The Appellant relies on Tan Kim Ho & Anor v PP [2009] 3 CLJ 236, where the Federal Court held that in an adversarial system, the defence has a duty to put its case to prosecution witnesses during cross-examination. If the defence fails to do so, the prosecution witnesses’ statements must be accepted as true. The Appellant submits that a defence not properly put to prosecution witnesses should be viewed as an afterthought incapable of raising reasonable doubt.

The Respondent submits that his defence was consistent throughout. He maintained that he did not stop at any student’s desk and did not touch SP2. The Respondent argues that the COVID-19 context was not an afterthought but a factual reality acknowledged by SP2 himself, who testified that students attended school in shifts due to the pandemic.

The Respondent contends that the learned Sessions Court Judge properly exercised her power to take judicial notice of the fact that on 9.12.2021, Johor was still dealing with COVID-19, and physical distancing protocols were in effect.

I have carefully considered both parties’ submissions on this issue. The principle in Tan Kim Ho is well-established: a defence must be put to material prosecution witnesses to allow the prosecution an opportunity to respond. However, S/N lhU5JOj4N06YVxv4sogq8g **Note : Serial number will be used to verify the originality of this document via eFILING portal 25 the application of this principle must be contextual and reasonable.

The evidence shows that SP2 himself testified during examination-in-chief that there was rotation of students attending school, confirming that COVID-19 protocols were in place at the relevant time.

The learned Sessions Court Judge took judicial notice at paragraph [66] that on 9.12.2021, Johor was still facing COVID-19: “Mahkamah mendapati bahawa walaupun isu berkaitan dengan Covid-19 dan menjaga penjarakan fizikal tidak pernah ditimbulkan semasa kes pendakwaan tetapi fakta tersebut telah dijelaskan oleh mangsa sendiri semasa pemeriksaan utama di mana mangsa di dalam keterangannya mengatakan terdapat penggiliran iaitu kumpulan A dan kumpulan B. Kumpulan A sekolah dahulu, selepas seminggu baru kumpulan B.”

The taking of judicial notice was appropriate in these circumstances. The COVID-19 pandemic and the resulting restrictions, including physical distancing requirements in schools, were matters of public knowledge and official government policy in December 2021.

While it would have been preferable for the Respondent to specifically put questions about physical distancing protocols to the prosecution witnesses, I do not find that the failure to do so renders the entire defence an “afterthought” or “bare denial.” The Respondent consistently denied S/N lhU5JOj4N06YVxv4sogq8g **Note : Serial number will be used to verify the originality of this document via eFILING portal 26 touching SP2. His explanation that he maintained physical distancing and monitored students from the teacher’s desk was consistent with this denial and with the factual context of COVID-19 protocols.

Moreover, the Respondent’s defence is not merely a bare denial. He provided a positive explanation for his conduct during the examination, namely that he distributed papers, supervised from the front, and collected answer sheets while maintaining physical distancing. This explanation, viewed in the context of the COVID-19 situation prevailing at the time, is not inherently improbable or implausible.

The question is not whether the Respondent has proved his innocence, but whether his defence, considered alongside the weaknesses in the prosecution’s case, has raised a reasonable doubt. The Cumulative Assessment: Has Reasonable Doubt Been Raised?

Having examined each aspect of the case, I must now consider whether, viewing the evidence cumulatively, the learned Sessions Court Judge was correct in finding that reasonable doubt had been raised.

The prosecution’s case rests primarily on the evidence of SP2, a child witness. While Section 18 of the Sexual Offences Against Children Act 2017 permits conviction on S/N lhU5JOj4N06YVxv4sogq8g **Note : Serial number will be used to verify the originality of this document via eFILING portal 27 uncorroborated child testimony, the prudence rule requires that such evidence be “unusually convincing.”

SP2’s evidence, while detailed in certain respects, contains some inconsistencies between his police report and his court testimony. While I have found that these inconsistencies have been somewhat overstated by the Respondent, they nonetheless exist and affect the overall assessment of credibility.

SP1’s evidence provides some corroboration, but its value is significantly diminished by her withdrawal of the complaint on the same day (approximately 3 hours after) the original police report and her admission that she does not remember all details of what occurred.

The complete absence of any supporting evidence from the approximately 20 other students present during the one-hour examination is a significant factor. While I do not draw an adverse inference against the prosecution, the absence of such evidence, in circumstances where multiple alleged touchings occurred over an extended period in a classroom setting, contributes to reasonable doubt.

The Respondent’s defence, while simple, is not implausible. His explanation that he maintained physical distancing in accordance with COVID-19 protocols is consistent with the factual context of December 2021 and is corroborated by SP2’s own testimony about student rotation. S/N lhU5JOj4N06YVxv4sogq8g **Note : Serial number will be used to verify the originality of this document via eFILING portal 28

Critically, this is not a case where the defence simply denies the allegation without more. The Respondent provided a positive explanation for his conduct during the examination that is consistent with the prevailing circumstances at the time.

The learned Sessions Court Judge had the advantage of observing the demeanour of all witnesses. She carefully assessed the credibility of SP2 and considered all the evidence before her. Her finding that reasonable doubt had been raised was based on a cumulative assessment of: (1) the inconsistencies in SP2’s evidence, (2) the limited corroborative value of SP1’s evidence given her subsequent withdrawal of the complaint, (3) the absence of any supporting evidence from other students present, and (4) the plausibility of the Respondent’s explanation in the context of COVID-19 protocols.

An appellate court should be slow to interfere with findings of fact by a trial judge, particularly regarding witness credibility, unless those findings are plainly wrong or against the weight of evidence.

In Mohamad Kamaruddin bin Arhan lwn Pendakwa Raya [2025] MLJU 1277, the High Court, per Abu Bakar Katar J, referred to Wan Marzuki Wan Abdullah v PP [2008] 4 CLJ 631, in which Gopal Sri Ram JCA (as His Lordship then was) stated: S/N lhU5JOj4N06YVxv4sogq8g **Note : Serial number will be used to verify the originality of this document via eFILING portal 29 “There is clear authority for the proposition that in an appeal of this nature which turns on questions of fact particularly in relation to issues of credibility, this court will be reluctant to interfere with the findings made by the primary trier of fact. We need go no further than to quote the following passage from the judgment of Shaik Daud JCA in Andy Bagindah v. PP [2000] 3 CLJ 289:- In the present case the learned judge concluded that there were discrepancies but those discrepancies were not material ones. Since this involved the credibility of witnesses, we held that the learned judge was a better person to decide and an appellate court ought not to interfere with such findings.”

Having carefully reviewed all the evidence and the grounds of judgment of the learned Sessions Court Judge, I find no error in her assessment. She properly applied the legal principles governing prima facie case, credibility assessment, and reasonable doubt. Her finding that the combination of factors identified created reasonable doubt was one that was reasonably open to her on the evidence.

The cardinal principle in our criminal justice system is that the prosecution must prove guilt beyond reasonable doubt. As stated in Ali Tan bin Abdullah v Public Prosecutor, reasonable doubt is not proof beyond the shadow of doubt, but neither can the court entertain doubts based on fanciful speculation. The doubt must arise from the evidence or want of evidence.

In this case, the reasonable doubt arises from the evidence itself: the inconsistencies in SP2’s testimony, the withdrawal of the complaint by SP1, the absence of supporting S/N lhU5JOj4N06YVxv4sogq8g **Note : Serial number will be used to verify the originality of this document via eFILING portal 30 evidence from other students, and the plausibility of the Respondent’s explanation in the prevailing context. These are not fanciful or speculative doubts but doubts grounded in the evidentiary record.

The learned Sessions Court Judge was therefore correct in finding that the defence had successfully raised reasonable doubt and that it would be unsafe to convict on the available evidence.

The Appellant raised several additional arguments that require brief consideration.

The Appellant submits that the learned Sessions Court Judge made speculative findings by considering it unlikely that the Respondent would commit such an act in a public classroom. With respect, this submission misconstrues the Sessions Court Judge’s reasoning. She did not make a finding based on improbability alone. Rather, she considered the totality of circumstances, including the public nature of the setting, the duration of the examination, and the presence of other students, in assessing whether the prosecution had proved its case beyond reasonable doubt.

The Appellant also argues that recent amendments to the Evidence Act 1950, specifically the Evidence of Child Witness (Amendment) Act 2024, support conviction on S/N lhU5JOj4N06YVxv4sogq8g **Note : Serial number will be used to verify the originality of this document via eFILING portal 31 uncorroborated child testimony. Section 2D of this Act provides: “2D. Uncorroborated evidence of child witness

Notwithstanding anything contrary in any other written law, an accused may be liable to be convicted or a child charged with any offence may be found guilty for an offence on the basis of the uncorroborated evidence of a child witness given upon oath or otherwise.

Any rule providing that an accused cannot be convicted or a child charged with an offence cannot be found guilty for an offence on the basis of the uncorroborated evidence of a child witness given upon oath or otherwise shall cease to apply.

Any rule requiring the Court to warn itself before convicting an accused or finding a child charged with any offence guilty for an offence on the basis of the evidence of a child witness given upon oath or otherwise merely because the evidence is given by a child shall also cease to apply.” [99] While Section 2D indeed removes the technical requirement for corroboration and the duty to warn, it does not eliminate the fundamental requirement that the prosecution prove its case beyond reasonable doubt. The amendment abolishes old common law rules about corroboration and warnings, but does not lower the standard of proof or eliminate the court’s duty to assess the credibility and reliability of evidence. The court must still be satisfied that the child witness’s evidence is credible and convincing enough to establish guilt beyond reasonable doubt. [100] Finally, the Appellant suggests that the Sessions Court Judge should have given less weight to the defence evidence. However, at the close of the defence case, the S/N lhU5JOj4N06YVxv4sogq8g court must consider all the evidence, including both prosecution and defence, and determine whether, on the totality of the evidence, the prosecution has proved its case beyond reasonable doubt. The learned Sessions Court Judge did precisely this, and I find no error in her approach. CONCLUSION AND ORDER [101] For the foregoing reasons, I find that the learned Sessions Court Judge correctly applied the law and properly evaluated the evidence when she found that reasonable doubt had been raised. The prosecution’s case, while raising serious concerns, ultimately failed to meet the stringent standard of proof beyond reasonable doubt required for a criminal conviction. [102] The combination of material inconsistencies in the victim’s evidence, the subsequent withdrawal of the complaint by the victim’s mother, the complete absence of supporting evidence from the approximately 20 other students present during the alleged incidents, and the plausibility of the Respondent’s defence in the context of COVID-19 protocols collectively created sufficient reasonable doubt. [103] While each of these factors individually might potentially be explained, when considered together and cumulatively, they fail to meet the standard required to sustain a conviction beyond reasonable doubt. The benefit of this doubt must be given to the Respondent. S/N lhU5JOj4N06YVxv4sogq8g [104] An appellate court should not interfere with a trial court’s findings of fact and credibility assessment unless those findings are plainly wrong or perverse. Having carefully reviewed the evidence and the grounds of judgment, I find no such error in this case. [105] Accordingly, this appeal is dismissed. The decision of the learned Sessions Court Judge dated 7.11.2024 acquitting and discharging the Respondent, Akmal Hakim bin Hadi Munir, of the charge under Section 14(a) of the Sexual Offences Against Children Act 2017 read together with Section 16(1) of the same Act is hereby affirmed and upheld. 9 December 2025 ATAN MUSTAFFA YUSSOF AHMAD Judge High Court of Malaya Johor Bahru S/N lhU5JOj4N06YVxv4sogq8g COUNSEL: For the Prosecution/Appellant: TPR Puan Nur Farah Wahida binti Shahudin Pejabat Penasihat Undang-Undang Negeri Johor, Aras 2, Bangunan Dato’ Ja’afar Muhammad, Kota Iskandar, 79100 Nusajaya, Johor. For the Respondent: Haji Rosli Bin Kamaruddin, with him Encik Muhammad Zahier bin Haji Rosli, Rosli Kamaruddin & Co 89 & 89A, Jalan Pulai 7 Taman Pulai Utama 81300 Skudai Johor S/N lhU5JOj4N06YVxv4sogq8g